Citation Nr: 0310550
Decision Date: 05/30/03 Archive Date: 06/02/03
DOCKET NO. 99-11 718 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for a skin disability of
the feet, claimed as foot fungus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas D. Jones
INTRODUCTION
The veteran served on active duty from June 1961 to December
1967.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1999 rating decision of a
Regional Office of the Department of Veterans Affairs (VA),
which found no new and material evidence had been submitted
with which to reopen the veteran's claim for service
connection for a fungal infection of the feet. He responded
with a timely Notice of Disagreement, and was sent a
Statement of the Case. He then filed a timely substantive
appeal, perfecting his appeal of this issue. In May 2001, he
testified before the undersigned member of the Board.
The veteran's appeal was initially presented to the Board in
August 2001, at which time his claim was reopened. It was
then remanded for additional development. It has now been
returned to the Board.
A personal hearing was conducted before the undersigned in
May 2001, at the VA Regional Office in Pittsburg, PA.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained and the
duty to notify has been satisfied.
2. The veteran incurred a fungal infection of the feet
during active military service.
3. The record reflects competent medical evidence of a
current diagnosis of onychomycosis of the feet resulting from
an in-service fungal infection.
CONCLUSION OF LAW
The criteria for the award of service connection for
onychomycosis of the feet are met. 38 U.S.C.A. §§ 1110,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As an initial matter, the Board notes that during the
pendency of this appeal, the Veterans Claims Assistance Act
of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), was enacted. It
essentially eliminates the requirement that a claimant submit
evidence of a well-grounded claim. The law also provides
that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim, but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. There are also new notification provisions
contained in this law which require VA to notify the claimant
and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. Regulations implementing the VCAA are codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326.
In this case, the RO has had an opportunity to consider the
claims on appeal in light of the above-noted change in the
law, and the requirements of the new law and regulations have
been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183
(2002) (addressing the duties imposed by 38 U.S.C. § 5103(a)
and 38 C.F.R. § 3.159). By virtue of the Board's full grant
of the benefit sought, no prejudice results to the veteran
based on consideration of his appeals at this time.
The veteran seeks service connection for a fungal infection
of the feet. Service connection may be awarded for a current
disability arising from a disease or injury incurred in or
aggravated by active military service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.303, 3.304 (2002). As with any
claim, when there is an approximate balance of positive and
negative evidence regarding any matter material to the claim,
the claimant shall be given the benefit of the doubt.
38 U.S.C.A. § 5107 (West 2002).
The veteran contends that he initially contacted a fungal
infection during military service in Vietnam. He stated as
his May 2001 personal hearing that his feet were "soaking
wet" during much of his service in Vietnam, and as a result
he developed an infection of the toenails. The veteran's DD-
214 reflects receipt of the Purple Heart Medal, indicative of
participation in combat. Generally, in the case of any
veteran who served in combat, satisfactory lay or other
evidence of an injury incurred in service shall be accepted
as sufficient proof of service incurrence of the injury if
the evidence is consistent with circumstances of service and
notwithstanding that there is no official record of service
incurrence of the injury. 38 U.S.C.A. § 1154 (West 2002).
In the present case, the veteran has reported incurring a
skin infection of the feet during military service in
Vietnam. While the Board is generally not bound by lay
assertions regarding medical matters, a layperson may
nonetheless testify as to readily observable features or
symptoms of injury or illness, such as a skin infection.
Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, and in
light of the veteran's combat service, the Board concedes
that the veteran incurred a fungal infection of the feet
during military service, notwithstanding the fact that such a
disease is not reflected in the service medical records.
The medical record reflects that a VA physician examined the
veteran in October 2002. The physician found evidence of
onychomycosis of the toenails of both feet, and opined that
"more likely than not" this disability began during the
veteran's service period. Prior to the examination, the VA
physician reviewed the record. Because the examiner's
medical opinion was based on a review of the record as well
as physical examination of the veteran, the Board finds it
persuasive.
In conclusion, after considering the totality of the record,
the Board finds that the preponderance of the evidence
supports the award of service connection for onychomycosis of
the feet.
ORDER
Entitlement to service connection for onychomycosis of the
bilateral feet is granted.
____________________________________________
BETTINA S. CALLAWAY
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.